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2 | Doing Business in Malaysia A LEGAL FACT SHEET GOVERNMENT AND LEGAL SYSTEM CONTRACTS AND LEGAL DOCUMENTATION Malaysia is a constitutional monarchy headed by a Commercial contracts are mainly written in English Yang Di Pertuan Agong (“King”) who is elected although certain government related contracts may every 5 years by a Council of Rulers. A federal be written in Bahasa Malaysia as well as in English. system of government links together 13 states and Malaysian courts will recognise contracts regulated the federal territories of Kuala Lumpur (financial and by a foreign law provided that the foreign law can be commercial capital of Malaysia), Putrajaya clearly presented and explained. Malaysian courts (administrative centre of the Federal Government) will generally also recognise a valid judgment of a and Labuan (International Offshore Financial Centre foreign court. of Malaysia). Freedom of contract is the underlying philosophy of Malaysia’s legal system is based upon English contract law and as such the terms of contracts may common law. The Civil Law Act, 1956 incorporated be agreed between the parties after negotiations. principles of English common law as at 1957 However, certain statutes may incorporate (Malaysia’s year of independence). As a result, compulsory terms into certain contracts for common law doctrines have been adopted into consumer protection. Provided that the contract is Malaysian jurisprudence and applied by Malaysian not for an illegal purpose or consideration or courts. English cases as at 1957 are immediately contrary to public policy, the reasonable contractual binding on Malaysian courts but cases after 1957 intention of parties which has been clearly together with decisions of courts of other expressed or evidenced will be upheld regardless of Commonwealth countries continue to have the nationality of the contracting parties. persuasive authority and are considered by Malaysian courts in arriving at their judgments. BUSINESS ENTITIES Business in Malaysia can be carried out either as a The states of Sabah and Sarawak in East Malaysia sole proprietorship, a partnership or a company. joined the then Federation of Malaya in 1963 to form the Federation of Malaysia. The agreement between Sole proprietorships and partnerships must be the then Federation of Malaya and the 2 states registered with the Companies Commission of granted those states autonomy in certain matters. Malaysia (“CCM”) under the Registration of Business As a result, the laws in the 2 states are not identical Act, 1956. However, only Malaysian citizens and to those of the other 11 states in Peninsular permanent residents can be registered as sole Malaysia. proprietors with the CCM. As a matter of practice, the CCM does not permit companies (whether Malaysian commercial law comprises of case law locally incorporated or foreign) or foreign individuals and statute law. Case law is based upon the to be registered as partners in a partnership. doctrine of stare decisis where courts are bound by precedence. This means that a decision of a Limited liability partnership has been proposed but superior court is binding upon itself as well as upon as of date, partnerships with limited liability are still inferior courts. Statute law is passed in accordance not permitted, except for offshore limited with the constitution and becomes law upon partnerships in Labuan, under the Labuan Offshore receiving the royal assent from the King. Limited Partnerships Act, 1997. Partners of a business are advised to draw up a formal The Constitution of Malaysia guarantees the rule of partnership agreement governing their rights and law and also establishes the separation of powers obligations. In the absence of a partnership between Parliament, the Executive and the Judiciary. agreement, the provisions of the Partnership Act, All matters relating to land and religion are the 1961 will apply. Business partnerships of more than prerogative of State Governments. Islamic 20 members for the acquisition of gain are generally jurisprudence is predominantly limited to Muslims not permitted and should be incorporated under the and their property and seldom enters the realm of Companies Act, 1965 (“CA”). corporate commercial transactions except where Islamic financing instruments are used. Under the CA, 3 main types of companies may be incorporated or established in Malaysia: COURTS • a private limited company which has liability The courts of Malaysia are divided into Subordinate limited by shares; Courts and Superior Courts. The Subordinate Courts • a public limited company which has liability have limited jurisdiction and comprise the Magistrate limited by shares; and Courts and the Sessions Courts. The Superior • a company limited by guarantee only. Courts comprise the High Court of Malaya, the High Court of Sabah, the High Court of Sarawak, the All 3 types of companies are corporate entities and Court of Appeal and the Federal Court. English is have separate legal identities and may enter into predominantly used in the Superior Courts but legally binding commitments, sue and be sued. Bahasa Malaysia (the national language) is more Companies limited by shares are the most frequently commonly used in the Subordinate Courts. Doing Business in Malaysia A LEGAL FACT SHEET | 3 used in Malaysia. Private limited companies are Association of the company or agreed by the known as ‘Sendirian Berhad’ or ‘Sdn. Bhd.’ (for short) shareholders of the company. Board meetings may and public limited companies are known as ‘Berhad’ be held via teleconferencing. or ‘Bhd.’ (for short). Another popular form of business organisation is the A joint venture may be formed between a foreign Operational Headquarters (“OHQ”) which has been company and a local entity by agreement permitted by the Malaysian government to promote (unincorporated joint venture) or by forming a the use of Malaysia as a regional base for providing company in which the parties to the joint venture are management services to affiliates outside Malaysia. shareholders (incorporated joint venture). In order to qualify for tax incentives, the OHQ must demonstrate that it provides qualifying services to its Prior to the incorporation of a company, an offices or related companies within and outside application must be done to determine if the Malaysia. It is also possible to set up a proposed name of the intended company is representative office/regional office which will entitle available. The proposed name of a company will be a foreign party to establish an office in Malaysia rejected if the name already exists in the records of albeit as a cost centre only. A representative the CCM. Certain names may also be rejected for office/regional office may not transact business or policy reasons. The incorporation process takes effect sales. approximately 1 week after the proposed name of the company is approved. It is also possible to The CA permits the registration of a branch of a purchase ‘shelf companies’ but in doing so, it is foreign company in Malaysia. The branch operates important to ensure that these companies do not as an extension of the foreign company and is not a have liabilities. separate legal entity. A branch of a foreign company may be permitted to carry on business in Malaysia. The constitutional documents of a company are called the Memorandum of Association and the Federal as well as local government licenses may be Articles of Association. These documents must be required to carry out certain businesses. For filed with the CCM. Companies must also file annual instance, companies engaging in manufacturing audited accounts and other returns with the CCM activities with a paid up capital of RM2.5 million and showing changes to shareholders, directors or above or who employ more than 75 full time secretaries and special resolutions passed by them. employees would require a manufacturing license from the Malaysian Industrial Development Authority. All companies must have at least 2 initial subscribers. Companies normally apply for an initial authorised EQUITY CONDITIONS share capital of RM100,000 to save costs and time The Malaysian government established a Foreign of having to enlarge the minimum authorized share Investment Committee (“FIC”) in 1974 to capital later. However, it is not necessary to have all implement equity and ownership guidelines to the authorized capital issued and fully paid up. enhance the level of bumiputra (indigenous Malaysian) participation in the economy. The FIC There may also be different capital requirements for implemented policy guidelines that generally certain industries. For instance, companies restricted foreign ownership to 30%. Over time as engaging in wholesale and retail trade must comply Malaysia liberalised its economy the restrictions with the policy on foreign participation in Distributive under the FIC guidelines have been progressively Trade Services administered by the Ministry of relaxed and restriction for acquisition of interests, Domestic Trade and Consumer Affairs. This policy mergers and takeovers were finally repealed on 30 requires all wholesale and retail businesses with June 2009. However, the overall objective of 30% foreign interest to operate through a locally bumiputra equity participation has not been incorporated company with the following minimum abandoned completely as equity conditions for capital requirement: investments will continue to be imposed by the • RM50 million for hypermarkets (also restrictions relevant sector regulators. For